E0503 Procedure - Mental Capacity Act

Number: E 0503
Date Published: 15 January 2026
Version 13 – January 2026

1.0 Summary of Changes

This procedure has undergone its yearly review with SETSAF form link updated throughout and the following updates:

Section 4.0 - EIA updated
Section 9.0 - Authors details and SETSAF guidance link added

This procedure should be read in full by all officers and staff engaged in providing any response to the public concerning all aspects of Mental Health. This procedure must be read in conjunction with:

• E 0500 Policy - Mental Ill Health;
• E 0507 Procedure - Right Care Right Person - S136 Mental Health Act 1983
• E 0502 Procedure - Section 135 Mental Health Act 1983; and

2.0 What this Procedure is about

This procedure details the specific responsibilities to be undertaken when responding to incidents whereby powers under The Mental Capacity Act 2005 (MCA) are invoked.

These should always be considered in the first instance prior to taking out a 136 Detention. For those in a mental health crisis, Police are not always the right agency to respond. Ambulance Service, Acute hospitals, Mental Health Crisis Suites and Social Services are often better placed to respond to calls for service. When Police receive contact due to concerns for an individual suffering from Mental Ill Health it is important to establish legal duties.

Should this call not relate to a real and immediate article 2 concern (Right to Life), preventing and detecting crime or keeping the Kings peace then this must be referred for ambulance to attend. If there is a real and immediate Article 2 concern, then it will be reviewed and consideration if police should attend. In line with the PROCEDURE – Right Care Right Person - Concern for Welfare.

The underlying philosophy of the MCA is that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves must be made in their best interests. The MCA creates a framework which provides protection for those who cannot make decisions for themselves. The MCA contains provisions for assessing whether or not someone has the mental capacity to make their own decisions and outlines procedures which will help safeguard them and make decisions on behalf of those who lack mental capacity.

2.1 What is the MCA?

The MCA allows the detention and deprivation of a person’s liberty which is necessary to provide:

• A lifesaving intervention; or
• It is vital to prevent a serious deterioration in their condition

A deprivation of liberty is defined as “Under constant supervision, control and unable to leave”

The MCA applies in England and Wales and affects anyone whose mental capacity to make decisions is affected by (what the MCA refers to as) "an impairment of, or a disturbance in the functioning of, the mind or brain." In some cases, a person’s capacity may be permanently affected, perhaps due to dementia, a learning disability or as a result of suffering a brain injury. However, in other cases the person’s capacity might be affected only for a temporary period, perhaps because they are confused or unconscious.

Police officers should only find themselves using the MCA in urgent situations of potential significant risk. The engagement of paramedics, mental health professionals or out-of-hours GP’s will be more appropriate than police wherever possible. The threshold to deprive someone of their liberty requires the person to be in a lifethreatening situation.

Even if officers accept a health professional’s assessment that a person lacks capacity, it is still the officer’s responsibility to determine whether and actions are in accordance with the act, especially if ‘restraint’ or ‘deprivation of liberty’ are considered. Police officers need to understand the principles of the act and how legal assessment of capacity is approached.

It must be remembered that just because a person has a mental health diagnosis or is detained under the Mental Health Act 1983 does not necessarily mean that they lack capacity to make decisions for themselves. The MCA applies to people with mental health problems only when they experience a mental health problem that affects their ability to make a particular decision. For some, the ability to make decisions is affected occasionally and only for short periods. For others, the ability to make certain decisions is permanently affected as a result of their experience of mental illness.

However, many people who experience mental health problems are capable of making all of their own decisions.

2.2 Principles of the MCA 2005

• A person must be assumed to have capacity unless it is established that they lack capacity;
• A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success;
• A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision;
• An act done, or decision made, under this act, or on behalf of, a person who lacks capacity must be done, or made, in his/her best interests;
• Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

The MCA gives a legal basis for providing care and treatment for people aged 16 years and over who lack the mental capacity to give consent to such care and treatment.

The MCA provides a statutory framework which provides guidance to agencies for dealing with people who lack capacity to make specific decision for themselves. It also covers temporary incapacity due to drug or alcohol abuse and mental ill health.

An example of these principles can be evidenced by an individual who is in their own home and who has self-harmed. Prior to the MCA being used to restrain that individual and force treatment to their physical injuries the following must be considered:

• It must be assumed that the individual has the capacity to make the choice to selfharm, even if it is considered to be a bad decision, unless there is clear evidence, suggesting they do not have capacity. In assessing whether the individual has the capacity to make this choice consideration must be given as to whether there is a condition which prevents the individual from weighing up all the benefits and consequences and understanding the result of their action;
• If it is considered that the individual is suffering from some form of mental illness (either permanent or temporary) that prevents them from making this informed choice AND it is in their best interests to receive treatment, then agencies have lawful authority to make a “best interests decision” to ensure that the individual is detained and then receives treatment;
• Consideration must also be given to the least restrictive manner of providing this appropriate care i.e., is it appropriate for the individual to receive treatment in their own home or do they need removing to a hospital for treatment.

2.3 Police Use of the Mental Capacity Act

The MCA is a way of allowing police to make decisions in connection with care and treatment of someone who the police reasonably believe is not currently able to make decisions in their best interests due to a lack of capacity. It does not allow officers to detain persons for the purposes of a mental health assessment.

The MCA gives a legal basis for providing care and treatment for people aged 16 years and over who lack the mental capacity to give their consent to such care and treatment.

Officers may need to make immediate decisions that relate to containing, controlling and potentially restraining an individual who lacks the capacity to make the decision in question for themself, while awaiting further input or direction from a heath or social care professional.

The MCA protects the officer making the decision where they take reasonable steps to assess someone’s capacity and then act in the reasonable belief that the person lacks capacity, and that such action is in their best interests.

The MCA is most likely to be necessary in emergency situations when officers are faced with someone lacking mental capacity, whose life may be at risk or who may suffer harm if action is not taken. For example:

• People attempting and threatening suicide;
• Victims of serious assaults;
• Casualties of major incidents;
• Individuals with serious injuries who decline medical aid.

Prior to using the powers under the MCA, officers must firstly:

• Determine the person’s capacity - everyone is assumed to have capacity unless there is evidence to the contrary i.e., mental condition that causes confusion, loss of consciousness, alcohol or drug use.

Capacity is assessed by determining if the individual can:

• Understand the information relevant to the decision;
• Use or weight that information as part of the decision-making process;
• Retain that information;
• Communicate that decision in any way (written, verbal, signed etc).

Having assessed the individual lacks capacity officers must then:

• Determine what is in someone’s best interests - it is generally accepted that in an emergency situation attempts to save someone’s life or prevent someone from suffering serious harm will normally be in that person best interests.

It must be remembered that the use of the MCA is not intended as an alternative or intended to take the place of the powers contained within Section 136 Mental Health Act 1983 or Section 135 of the Mental Health Act 1983.

2.4 Restraint and Use of Force

Reasonable force may be used to protect and control someone who does not have the mental capacity to take action to protect themselves. The officer must reasonably believe that it is necessary to use restraint or other force in order to prevent the subject being harmed or harming themself.

The degree of force used must be proportionate to:

• The likelihood of that person suffering harm; and
• The seriousness of that harm.

The power to restrain a person under the MCA does not interfere with existing powers of arrest for criminal offences or detention under Section 136 MHA 1983.

2.5 Recording Decisions about Mental Capacity

Where an individual is restrained using powers under the Mental Capacity Act, regardless of whether they are conveyed to hospital or not, all officers at scene or when returning back to the station, are required to record all of the details on an ATHENA non crime investigation – classification ‘Mental Health Investigation – Use of Mental capacity Act 2005.

Officers must record in the enquiry log that they have used restraint under the MCA, include their rationale and it must clearly state on ATHENA that the officer has used the MCA, as the Assessment & Investigation Centre will need to add this as a classification to the investigation.

The record should include:

• The information used to decide the person lacked capacity, including questions asked and the person’s replies;
• What options were considered (including each one’s potential benefits and harms, and whether each one was lawful, necessary and proportionate);
• Any other factors taken into account (e.g., powers and policies);
• The action that was taken;
• The effect of the action taken.

Where Section 135 or 136 is used, the MH App needs to be completed with details of the detention along with form A287 also to completed and uploaded to Athena as part of a non crime 135 or 136 detention record.

2.6 Public or Private

The MCA is only to be used when necessary to provide life sustaining treatment or do a vital act necessary to prevent a serious deterioration in their health and can be used in both public and private places in situations involving people who have suffered serious physical harm (such as a self-harm injury) or where it is likely they will suffer serious physical harm, but who decline medical aid or other intervention due to lacking the capacity to make a specific decision in regards to this, due to some impairment of the mind.

2.7 Conveyance to Hospital

When a person is detained under the MCA and they require treatment at hospital, they must be conveyed to an acute hospital (usually emergency department ED) to allow treatment of physical injuries and an assessment to be carried out in relation to their capacity, which will normally take place within the ED. Officers may use reasonable force in order to restrain that person. Where staff decide the person neither lacks capacity, nor meets the criteria for detention under the MCA then the person should be discharged.

In the situation where it is reasonably believed that a person lacks capacity, but does not require removing from the scene, however officers believe restraint is necessary to provide treatment or prevent harm, then they may use reasonable restraint in order for that person to receive treatment.

Where it is suspected that any individual detained under this section is suffering from excited delirium or Acute Behavioural Disturbance (ABD), this should be treated as a medical emergency and an ambulance called. No-one detained under the MCA who has been medically sedated, should be conveyed anywhere without a suitably qualified clinician (usually the doctor or senior nurse in charge), who is experienced in caring for such patients.

3.0 Detail the Procedure

3.1 Response, Investigation and Prevention

3.1.1 Adults at Risk of Abuse and Neglect

The purpose of adult safeguarding is to prevent harm and reduce the risk of abuse or neglect to adults with care and support needs. The statutory framework introduced under the Care Act 2014 applies to any person aged 18 or above whom:

• Has needs for care and support (regardless of the level of need and whether or not the local authority is meeting any of those needs);
• Is experiencing, or is at risk of abuse or neglect; and
• As a result of those needs, is unable to protect themselves against the abuse or neglect, or the risk of it.

Engagement of the Local Authority Safeguarding Teams through the submission of a SETSAF will ensure that future action taken is in line with the legal frameworks for safeguarding vulnerable adults and the individual’s specific needs and requirements are taken into account and provided for. Officers are to attach the SETSAF to the related Athena record, creating an Adult Protection Athena record for any incidents where there are no connected offences. A task is then to be sent to the OC Triage Adult Athena work tray only and emails are NOT to be used as any form of correspondence. See B 1407 Procedure - Safeguarding Vulnerable Adults for further details.

3.2 Investigation Involving Vulnerable Witnesses/Victims

It is essential that the police deal with all victims and witnesses professionally using the highest standards of response, care and support. This will:

• Increase confidence in the Criminal Justice System;
• Improve the quality of evidence;
• Bring more offenders to justice.

Witnesses who are deemed to be vulnerable will require more consideration by the  police and will be entitled to an enhanced service, as specified in the Office for Criminal Justice Reform Code of Practice for Victims of Crime.

Dealing with victims of crime is a key priority for Essex Police and who will always provide a caring and effective response to victims of crime; particularly those identified as being ‘vulnerable’ or who have an enhanced entitlement under the Code of Practice for Victims of Crime, October 2015 (see B 2505 Procedure - Dealing with Vulnerable and Intimidated Witnesses within the Criminal Justice System).

Part of the definition of a vulnerable witness is, any witness whose quality of evidence is likely to be diminished because they:

• Are suffering from a mental disorder (as defined by the Mental Health Act 1983);
• Have a significant impairment of intelligence and social functioning.

3.3 Suspects Suffering with Mental Ill Health

There can be situations where the police are satisfied that the conditions are met to arrest a person for committing/on suspicion of committing a criminal offence or determine that a S136 detention or a S135 detention, may be a more suitable approach. Refer to E 0507 Procedure - Right Care Right Person - S136 Mental Health Act 1983, section 3.3 or E 0502 Procedure – Section 135 Mental Health Act 1983, section 3.3 for more information.

If an arrest for a criminal offence is appropriate, the new Assaults on Emergency Workers (Offences) Act 2018 should be considered, which came into force in 2018, creating under section 1, an offence of common assault or battery committed against an emergency worker acting in the exercise of their role as an emergency worker. It is essential that where appropriate officers make use of these new offences and help reduce the number of assaults on emergency workers.

3.4 Escalation Process

There will occasionally be disputes between police and health services, either at the HBPOS or ED, regarding the perceived risk the person presents and the continued requirement for police involvement, which can lead to lengthy delays. Officers should follow the escalation process for either the HBPOS or ED, which is contained within E 0507 Procedure - Right Care Right Person - S136 Mental Health Act 1983, section 3.8.1 and 3.8.2. These delays can also occur whilst a person is detained in police custody pending an MHA assessment and the escalation process will be managed by the Custody Sergeant. Details of this are contained within E 0118 Custody Mental
Health Assessment

3.5 The Role of the Adult Triage Team

Officers based within the Operations Centre (OC) will be responsible for the receipt of any SETSAF. The team will identify whether any criminal offences have been committed on those SETSAF’s received from Partnership Agencies and will liaise with any investigative department or outside agency. Further advice and guidance is available within B 1407 Procedure – Safeguarding Vulnerable Adults.

3.6 Risk

Professionals and practitioners must respect the rights of individuals whilst seeking to ensure their behaviour does not harm themselves. Where the person is deemed to have capacity and to understand the implication of their actions every effort should be made to encourage the individual to engage with the most appropriate service. It is only when it is deemed that the individual does not have the capacity to understand the implication of their actions that the MCA applies.

3.7 AWARE Principles

The AWARE principles function as a guide for things to look out for and be aware of whilst having a consistent framework to report back against and support in identifying vulnerability and helping people with mental health concerns.

Whilst individual points of note may not in themselves be a cause for concern, a reported number of factors over time or when reviewed within specialist teams, may raise a concern, and may require safeguarding action to be taken by Essex Police or Partner Agencies.

Police must use the AWARE principles to observe and identify what is happening around the person to assist early safeguarding opportunities and identify potential warning signs of mental health concerns.

Using the principles will enable police to look for patterns or clusters of behaviour, rather than isolated instances, to decide if the person might need more in-depth help and support.

The principles cover five key areas for intelligence gathering based on the acronym AWARE:

• Appearance
  Observing a person’s physical appearance can offer clues to their mental wellbeing.
  Look out for the following:
  Personal hygiene and noticeable lack of self-care such as unwashed clothes, lack of washing or generally presenting as dishevelled.
  Wearing inappropriate clothing for weather conditions or time of year or clothing that does not seem to suit that person.
  Physical changes may be something observed if we have frequent interactions with a person, or reported by family and friends, with sudden weight loss or gain potentially indicating issues with eating or underlying mental health problems.
  Body language such as lack of eye contact, avoiding others or facial expressions that do not seem present in the situation could be signs of concern.
  Physical signs of self-harm such as visible bruises, cuts or scratches particularly if these are unexplained or explanation appears evasive or improbable.
• Words
  Its really important to listen to what people are saying and how they are saying it.
  People may say what they think people want to hear to avoid awkward questions and this can allow warning signs to be missed. What people say can reveal a lot about their inner thought process and potential future actions.
  Look out for the following:
  Emotional language such as expressions of sadness, hopelessness, anxiety, anger or frustration. Phrases of concern would be statements such as “I can’t do this anymore” or “I feel worthless”.
  Low self-esteem. Making comments about their own self-worth, competence or feeling like a burden on friends or family. Repeated self-blame or negative statements about themselves are a red flag.
  Expressing fear or paranoia. Look out for statements that imply mistrust, feeling threatened or targeted without clear evidence as these could be signs of anxiety or paranoia.
  Unclear speech such as difficulty in the person following a train of thought, rambling or incoherent or words that seem confused or disconnected from the situation.
  Talk about taking risks such as mentioning self-harm, suicide or engaging in risky behaviours. Even comments about joking about death or suicide need to be taken seriously in the wider context of the situation.
• Activity
  Highlights changes in a persons physical or mental activity may indicate a change in mental health.
  Look out for the following:
  Withdrawing from activities that they have previously enjoyed or engaged in such as hobbies, work, school or social events.
  Physical inactivity. Noticeable drop in energy like pacing, fidgeting (hyperactive) or an unusual amount of lethargy or being sluggish.
  Disrupted sleep patterns including excessive sleep or not sleeping at all or taking unusual period of sleep hours.
  Poor concentration with difficulty focusing, making frequent mistakes or forgetfulness that becomes more of a regular concern.
  Risk taking behaviour such as drug/alcohol abuse, dangerous driving or other dangerous activities could be a call for help and indicate a lack of self-care.
• Relationships and dynamics
  Looking at the relationships in someone’s life can highlight key areas of concern.
  Look out for the following:
  Relationships can be a key indicator into the status of someone’s mental health.
  Look out for the following:
  Isolation from family and friends and avoidance of those groups or social situations that were previously engaged with.
  Increased conflict, irritability or impatience with loved ones which could suggest building frustration and anger.
  Becoming overly reliant on a person (or organisation) for emotional support which highlights concerns of insecurity or fear of being on their own.
  Difficulty trusting people and expressing increased suspicion or paranoia about people’s intentions which might highlight anxiety and prevent the person from engaging with support.
  Changes in how the person communicates like excessive texting, phone calls, oversharing of information or the opposite change with sudden silence and lack of contact will all be signs of an internal shift.
• Environment
  The environment a person lives in, their physical space, lifestyle habits and potentially a place a person is locating in can offer clues about changes in their mental health or highlight a more imminent threat.
  Look out for the following:
  Home or work environment showing an unusual increase in messiness, appearing disorganised or neglecting certain things like self-care, animals, particularly if this is a change to their usual habits.
  Living conditions. Is there a change in the home environment with the home becoming unsafe, untidy, out of date food in fridge or signs of hoarding. Any factors may indicate stress, distress, or neglect.
  Change in finances. Overspending, borrowing, payday loans, unpaid bills or other signs of financial stress, particularly if a change from someone who previously managed this well.
  Substance abuse such as drinking alcohol to excess, new or increased drug use or other unhealthy coping strategies adopted, particularly if a change in behaviour.
  Isolation. Do they have family, friends, neighbours, support groups or are they on their own. Are they choosing to be on their own and avoiding human contact which could be signs of withdrawal and depression.

3.8 Boundary Issues

Essex Police will be responsible for managing incidents which fall within the Essex Police Districts (EPD). Where an incident is reported which sits on or near to the boundary of the EPD and another Force area (usually arising on Fast roads, such as M25/A12/M11 etc), it is imperative that clarity and confirmation of the location is sought to ensure the correct Force ownership and allocation of resources to it.

Where there is a lack of such clarity, misunderstanding or disagreement on the location of the incident/boundary, and there is a clear risk of serious harm/safety in line with Art.2 HRA, Essex Police will retain responsibility for attendance to reported incidents in order to mitigate such risks and until clarity of location and ownership is confirmed.

Procedure D 0503 - Command and Control of Incidents provides further information.

4.0 Equality Impact Assessment

• EIA – January 2026

5.0 Risk Assessment

Police officers and police staff will adopt a generic risk assessment in line with the relevant procedure and in accordance with their individual roles. Also see section 3.6.

6.0 Consultation

The following were invited to consult during the formulation of this document:

• Unison
• Police Federation
• Essex Diversity and Inclusion Manager
• Health & Safety
• Head of Operational Change
• PSD D/Superintendent
• Risk
• Policy
• Superintendents Association
• Strategic Force Crime & Incident Registrar
• DPO/Temp Head of Info Management
• Head of Assessment & Investigation Centre
• Head of Operations Centre
• Support Networks
• Owner

7.0 Monitoring and Review

This procedure will be reviewed by, or on behalf of, the Head of Crime and Public Protection every 12 months.

8.00 Governing Force policy.

Related Force policies or related procedures

• E 0500 Policy - Mental Ill Health;
• E 0507 Procedure - Right Care Right Person - S136 Mental Health Act 1983
• E 0502 Procedure - Section 135 Mental Health Act 1983;
• B 1400 Policy - Protecting Vulnerable People
• B 1407 Procedure - Safeguarding Adults at Risk
• E 0100 Policy - Custody
• B 1600 Policy – Missing Persons
• B 1601 Procedure – Missing Persons

8.1 Data Security

Essex Police have measures in place to protect the security of your data in accordance with our Information Management Policy – W 1000 Policy – Information Management.

8.2 Retention & Disposal of Records

Essex Police will hold data in accordance with our Records Review, Retention & Disposal Policy – W 1012 Procedure/SOP - Records Review, Retention and Disposal. 

We will only hold data for as long as necessary for the purposes for which we collected. Victims/public should be reminded that Essex Police take the protection of personal data seriously as described in the privacy notice.

9.0 Other source documents, e.g., Legislation, Authorised Professional Practice (APP), Force forms, partnership agreements (if applicable)

• Joint Policy Relating to Section 136 Mental Health Act (1983)
• Essex Police, Essex County Council, North Essex Partnership Foundation NHS Trust and South Essex Partnership NHS Foundation Trust partnership agreement.
• Criminal Justice Department Website
• Form A 287 – Section 1 Detention Monitoring and Joint Risk Assessment Handover Form
• SETSAF Form
• SETSAF Guidance
• Gov MH legislation website
• College of Policing APP